This is a criminal negligent driving occasioning GBH case, inherently you have to prove fault to charge someone with a crime of negligence - ie strict liability cannot apply.

In NSW, a pedestrian on the footpath is going to be covered by third party insurance of the vehicle (because its extremely hard to place the victim at fault) so it would make no difference to her outcome. The case is not a civil case regarding making good, its a criminal case, regarding legal punishment.

As far as the witness goes, unless some substantial effort has been made by her to secure the mat, then she is technically guilty of negligent driving every time she gets in her car, and she would not be able to use this as a defence should a similar scenario play out for her in the future. She may be fairly easy to discredit if that line of discussion is taken up by the prosecution - ie she may go on to describe how obvious the mat problem is and how the defendant should probably have known etc.

This is a weak defence, because the witnesses statements may risk indicating he was aware the mat was loose - ie I'd not like to be a lawyer trying this defence on, one slip of the tongue by the defendent, and he is done. Knowingly driving a defective car is also negligent driving.

the question is even better than you think because negligent driving is a strict liability offence - see Director of Public Prosecutions (NSW) v Yeo and Anor [2008] NSWSC 953.

In law strict liability has a particular meaning, an offence for which intent is not required. Eg murder requires the crown to prove not just that someone died because of your actions but that you intended to kill, cause GBH etc.

The very point of negligence offences is that you didn't exercise reasonable care.

the question is even better than you think because negligent driving is a strict liability offence - see Director of Public Prosecutions (NSW) v Yeo and Anor [2008] NSWSC 953.

In law strict liability has a particular meaning, an offence for which intent is not required

I often forget that there are 2 definitions of strict liability. Tort law defines it as responsibility without fault. strict liability offences as you say are offences without intent.

I suspect that most people calling for strict liability for vulnerable road user incidents actually mean the former, where as this case is about the latter - we'd have to have clarification from Kona about which part to argue about

I presume your reference to strict liability in tort is a reference to the rule in Rylands v Fletcher. If so you may care to read Burnie Port Authority v General Jones Pty Ltd (1994) HCA 13; (1994) 179 CLR 520. The majority of the High Court held that in Australia the rule had been subsumed into the general law of tortious negligence.

What I think people who are arguing for "strict liability" are missing is that there is another way to protect vulnerable people without trying to re-write the criminal law. This is found at para 37 of the majority decision by reference to the special duty of care.

Adopting the language of that para, a special duty of care is owed where there is a central element of control by one party, the driver, and special dependence and vulnerability in relation to the other (the pedestrian or cyclist).

The driver is undertaking a dangerous activity. The pedestrian or cyclist is specially vulnerable to danger if reasonable precautions are not taken by the driver in relation to how the car is driven. The pedestrian or cyclist is specially dependent upon the driver ensuring that reasonable precautions are in fact taken. Commonly, he or she will have neither the right nor the opportunity to exercise control over, or even to have foreknowledge of, what is done by the driver.

I am not suggesting this is the current state of the criminal law, but rather advocating this as an approach that is more likely to achieve what we all want which is that a cyclist is particularly vulnerable in a collision with a car such that drivers are required to take greater care around cyclists.

Most people calling for strict liability mean so in a sense that is derived from a legal jurisdiction where the concept is still in force for torts.

I'm not convinced our current system discourages people sufficiently to avoid accidents with vulnerable road users, as this driver probably won't even get an ICO let alone a custodial even if found guilty, and he is entirely indemnified against costs by CTP. ie personal burden and penalties for the driver is nothing usually. In particular the cheap car without comprehensive, its worse to hit a mercedes than is to hit a pedestrian.

I also think its loosely a crisis of the commons in that crap drivers can be at fault multiple times, and good drivers bear the burden in premiums, and the legal system is divorced from the premiums as an issue. A co-contribution system (where first order of business is insurance paying the victims medical costs), and second order of business is extracting a co-contribution from the at-fault (in absence of other financial options, the car itself), would be an improved way of doing things, especially if all wrapped up in the one case.

The resulting changes to premiums would probably make that palatable to the majority of motorists (ie the ones that manage to never hit a pedestrian).

zero wrote:This is a criminal negligent driving occasioning GBH case, inherently you have to prove fault to charge someone with a crime of negligence - ie strict liability cannot apply.

Yeah, but my point is this: for Strict Criminal Liability (my personal definition: offences with no fault element) to do any good, the defendant would not only have to be found not guilty (which hasn't happened), they'd have to be found not guilty because the Crown hadn't made out the fault element. So, again, what would Strict Liability fix here? I note a few different definitions. I don't mind which one would lead to a better result. Any one will do. That's the great thing about such a vague slogan

I don't think you can have a "crime of fact" interpretation on car mounts kerb and strikes pedestrian.

Mounting the kerb often happens at intersections as a byproduct of being struck by a red light runner. Driver may well be unconscious or dead at that point in time if the runner has t-boned the drivers door, as well as the steering being sufficiently deranged or momentum sufficiently altered as to render avoiding mounting physically impossible.

zero wrote:I don't think you can have a "crime of fact" interpretation on car mounts kerb and strikes pedestrian.

Mounting the kerb often happens at intersections as a byproduct of being struck by a red light runner. Driver may well be unconscious or dead at that point in time if the runner has t-boned the drivers door, as well as the steering being sufficiently deranged or momentum sufficiently altered as to render avoiding mounting physically impossible.

All of which are situations where the defence of accident or unwilled act would almost certainly succeed. I don't see the problem.

EDIT: As I understand Queensland criminal law. It may work differently in other states.

zero wrote:This is a weak defence, because the witnesses statements may risk indicating he was aware the mat was loose - ie I'd not like to be a lawyer trying this defence on, one slip of the tongue by the defendent, and he is done. Knowingly driving a defective car is also negligent driving.

Weka as it may be, that slip of the tongue is most unlikely to happen. Defendants don't have to testify in criminal cases and defense lawyers who are any good never put them in the box.

It's up to the prosecution to prove beyond reasonable doubt. All the defendant's team has to do is raise reasonable doubt.

zero wrote:This is a weak defence, because the witnesses statements may risk indicating he was aware the mat was loose - ie I'd not like to be a lawyer trying this defence on, one slip of the tongue by the defendent, and he is done. Knowingly driving a defective car is also negligent driving.

Weak as it may be, that slip of the tongue is most unlikely to happen. Defendants don't have to testify in criminal cases and defense lawyers who are any good never put them in the box.

It's up to the prosecution to prove beyond reasonable doubt. All the defendant's team has to do is raise reasonable doubt.

zero wrote:This is a weak defence, because the witnesses statements may risk indicating he was aware the mat was loose - ie I'd not like to be a lawyer trying this defence on, one slip of the tongue by the defendent, and he is done. Knowingly driving a defective car is also negligent driving.

Weka as it may be, that slip of the tongue is most unlikely to happen. Defendants don't have to testify in criminal cases and defense lawyers who are any good never put them in the box.

It's up to the prosecution to prove beyond reasonable doubt. All the defendant's team has to do is raise reasonable doubt.

You are right about the general propositions, but in this particular case the possibility that the accelerator could have got stuck under the mat raises too many other issues that go to the exercise of due care - ie put car in neutral, turn off engine, not run off road.

There is also the principle from Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217, concerning inferences that may be drawn in relation to matters that are peculiarly within the knowledge of the defendant.

Still all we have to go on are media reports, which are, unfortunately, often wildly inaccurate.

I was looking to see if there was any further developments in this case. It appears that the driver did give evidence see man denies lying about pedestrian accident however I can find no reports as to his cross examination by the Crown, nor anything that occured on the second day of the hearing, 5 June.

Oxford wrote:to my mind, strict liability would work in a similar manner to the way speeding fines work. select whatever heirachy you like for example:

pedestrians;cyclists;motorcyclists;motor vehicles;etc..

cyclist hits pedestrian, then there is a set fine like there is in speeding. cyclist wishes to contest it they can through the court system, however the burden is on the cyclist to show cause as to why they could not avoid the collision.

similarly, motorcyclist hits bike/pedestrian or motor vehicle hits bike/pedestrian/motorcyclist etc etc, then there is a set fine like there is in speeding. if the offender wishes to contest it they can through the court system, however the burden is on them to show cause as to why they could not avoid the collision.

it doesn't have to be hard, but it does have to be consistent and most of all people need to be aware of it. as stated somewhere on the forums, if more people drove with the intention of not hitting anything and had that as their primary driver (sic) when using the roads, it would not be a problem.

A few observations:

It's unappealing to go to court over a speeding fine because of the evidentiary provisions as well as the strict liability. I imagine an accident/unwilled act defence would be easier to make out in the case of a collision too.

The burden is always on the Crown; reversing it could run into some constitutional problems, not to mention being really creepy.

The "fine, no court" arrangement has some limitations. It immediately takes the option of serious penalties, like gaol, off the table. Given the deterrent effect of speeding fines I think this is a major problem. I notice that NSW takes the approach of only imposing gaol when there are aggravating circumstances (like causing harm) for negligent driving. So it's do-able. I myself think that the penalties are a bit light on there.

That said, I don't mind the idea of a strict liability offence of colliding with a vulnerable road user. I just think it should have teeth. Strict liability offences carrying gaol time are nothing new: unlawful wounding in Queensland is one example.

Oxford wrote:I'm not saying the burden of proof is reversed, I am saying that the offender needs to show cause as to why they could not avoid the collision.

I would hope that like people not wanting to fight speeding tickets (just to hard), people would not want to fight this sort of offence in court. as a result maybe people would drive a little more sensibly?

The poster child for road safety laws is the RBT laws. The penalties for DUI include gaol, loss of license. Those are penalties for behaviour that is merely risky. In the case of a collision, the risk has materialised. The penalties should be more severe.

high_tea wrote:The poster child for road safety laws is the RBT laws. The penalties for DUI include gaol, loss of license.

it's more than just the penalties though. RBT blitzes mean that the chance of being caught is much higher these days.

the problem with collisions is that drivers know the financial cost is mostly covered by insurance and the law takes a very lax line on laying blame, usually not at all. in other words, drivers get away with it without even being blamed. i don't agree it's the penalties that are the only major factor, it's the stigma of blame. that doesn't exist for hitting a cyclist - people will almost pat you on the back for it and the cops won't do anything in most circumstances.

a strict liability law would address that. the fact is, most people (non-cyclists) are rather happy with the (appalling) status quo.

Just occurred(?) to me - while I'm on the Qld bike rego warpath - that there would be a more compelling case and a better suited legal environment for the introduction of Strict Liability here. God knows we'd need it when cyclists are taking a whole lane legally in the "Sir's Joe & Russ PtII" State.

KonaCommuter wrote:I’m thinking that a thread listing where people have consciously chosen to place vulnerable traffic / people at risk in order to avoid hitting larger objects

So here we have an example where a man chose drive on the footpath to avoid hitting a bus. The result being he ran down a mother and a 19 day old baby yet it wasn’t his fault

Going back to the OP, whether negligent riding is strict or general liability would probably make little difference in this sort of situation. The driver, would likely have ran a defence of necessity; that he had no other option, to avoid a perilous situation. To avoid being hit by a bus, would probably be a compelling argument in running this defence.

KonaCommuter wrote:So here we have an example where a man chose drive on the footpath to avoid hitting a bus. The result being he ran down a mother and a 19 day old baby yet it wasn’t his fault

that he had no other option, to avoid a perilous situation. To avoid being hit by a bus, would probably be a compelling argument in running this defence.

This is precisely why such an offence is necessary. Hitting the bus is preferable to mowing down pedestrians. The car has airbags and all sorts of gear to reduce the severity of impact. If hitting the vulnerable person on the footpath meant 4 weeks in the clink, he would have hit the bus instead.

Strict liability at its heart is about drawing a line in the sand and saying "a driver can destroy a life in a split second, and that life is more important than the driver's need to get somewhere faster". That's what driving is about. Going places faster. It should not be acceptable for car users to destroy lives.

The lexus driver had a few options. Turn the car off. Hit the bus. Sue Lexus for a dodgy car. Simple fact of the matter is this - lying, to the police or in court, is easy. CTP isn't going to fix the mum's problems.

Xplora wrote:This is precisely why such an offence is necessary. Hitting the bus is preferable to mowing down pedestrians. The car has airbags and all sorts of gear to reduce the severity of impact. If hitting the vulnerable person on the footpath meant 4 weeks in the clink, he would have hit the bus instead.

with respect, i think it's highly unlikely that anything other than self preservation instincts would have influenced the driver's evasive actions in those circumstances. they would not have time to weigh up the legal outcomes of their vehicle control inputs.

Xplora wrote:This is precisely why such an offence is necessary. Hitting the bus is preferable to mowing down pedestrians. The car has airbags and all sorts of gear to reduce the severity of impact. If hitting the vulnerable person on the footpath meant 4 weeks in the clink, he would have hit the bus instead.

with respect, i think it's highly unlikely that anything other than self preservation instincts would have influenced the driver's evasive actions in those circumstances. they would not have time to weigh up the legal outcomes of their vehicle control inputs.

Dammit.... I just spent ages writing a detailed response as to why I entirely agree with Jules... than I accidentally hit backspace and my browser went back a page and I lost it. Damn.

master6 wrote: Moderators are like Club Handicappers; I often think they are wrong, but I dont want the job.

KonaCommuter wrote:So here we have an example where a man chose drive on the footpath to avoid hitting a bus. The result being he ran down a mother and a 19 day old baby yet it wasn’t his fault

that he had no other option, to avoid a perilous situation. To avoid being hit by a bus, would probably be a compelling argument in running this defence.

This is precisely why such an offence is necessary. Hitting the bus is preferable to mowing down pedestrians. The car has airbags and all sorts of gear to reduce the severity of impact. If hitting the vulnerable person on the footpath meant 4 weeks in the clink, he would have hit the bus instead.

Strict liability at its heart is about drawing a line in the sand and saying "a driver can destroy a life in a split second, and that life is more important than the driver's need to get somewhere faster". That's what driving is about. Going places faster. It should not be acceptable for car users to destroy lives.

The lexus driver had a few options. Turn the car off. Hit the bus. Sue Lexus for a dodgy car. Simple fact of the matter is this - lying, to the police or in court, is easy. CTP isn't going to fix the mum's problems.

I agree with jules21. They didn't sit back, relax and make a considered decision to hit one or the other. It's a bit hard to tell exactly what went on from the media reports. Claiming that the defendant deliberately hit a pedestrian rather than collide with a bus is a very large assumption based on, as far as I can tell, very little.

The driver is charged with a reasonably serious offence. Gaol time is a possible result of what they did. Off the top of my head, I think the maximum is 9 months in gaol. How, exactly will drawing this "line in the sand" (whatever that means) make it easier to obtain a conviction?. Because that, at its heart is what strict liability is about: making it easier to find someone liable. The appropriate penalty is another, separate discussion. First you have to find them guilty.

If anyone knows how this case panned out, could they please share it? I've searched, although briefly, and found nothing. Because all we have is someone charged, quite rightly, with a serious offence getting, quite rightly, their day in court. I can't see any definition of "strict liability", improving that situation. If they were found not guilty, that might be another matter, hence the question.